Proving infringement and recovering for it are different projects. The second is failing more often than the first, and it is failing on foundation.
Start a conversation with the IP Concierge, already scoped to royalty evidence. Select a subject area to prompt it, or describe the matter directly.
Something has shifted in intellectual property damages, and it is not the arithmetic. Over the last two years appellate courts have repeatedly set aside damages awards not because the expert computed the wrong number but because the evidence underneath the computation would not bear it: licenses characterized as showing a rate they did not unambiguously establish, a portfolio license used without separating the asserted patent from the others in it, a royalty base with no demonstrated causal connection to the accused functionality. The consequence when this goes wrong is severe and asymmetric — a proven infringement can end in a nominal award, because the liability case and the damages case succeed or fail independently. This area is about the record a damages opinion has to stand on. What the opinion should then compute belongs to our Economic Damages Institute.
Each has generated its own recent authority, and each is fixable long before an expert report is due.
The most-used input in patent damages, and the one most likely to be excluded for saying more than it can.
investigateSeparating the value of the patented feature from everything around it — a technical problem before it is an economic one.
investigateProven infringement, nominal recovery. The failure mode that has become common enough to plan around.
investigateThe evidentiary work that has to happen before a damages opinion is written.
Because courts have been pressed to take the gatekeeping role seriously and have done so, and because the evidentiary rule governing expert testimony was amended in late 2023 to underline that the proponent must establish admissibility and that an expert must stay within what their methods reliably support. Applied to damages, that scrutiny lands hardest on the inputs: which licenses are genuinely comparable, what they actually establish, and whether the royalty base connects to the accused functionality. An opinion can be internally coherent and still be excluded because its foundation was assumed rather than shown.
Frequently something far worse than a reduced award. Where a patent owner has no admissible evidence supporting a royalty, courts have entered nominal awards after infringement was established — in one 2025 appellate decision, a jury award of roughly ten million dollars was reduced to one dollar. Liability and damages are proved separately, and winning the first does not preserve the second. That asymmetry is the reason to treat the damages foundation as a first-year problem rather than an expert-report problem.
No, and this is the most common misreading of the current authority. An agreement is evidence of what the parties agreed, and using it to establish a rate for a different patent, product or context requires showing comparability and explaining what the agreement actually establishes. Lump-sum agreements are particularly difficult to convert into per-unit rates, and an expert who testifies that the parties understood a payment to reflect a particular rate needs something in the record supporting that, rather than an inference from the size of the payment.
Predominantly, because the patent owner bears the burden on damages — but not exclusively. Defense experts are subject to the same rule, and a rebuttal opinion resting on cherry-picked licenses or an unsupported apportionment is vulnerable in the same way. The direction of travel is also not uniformly one-way: a 2026 appellate decision reversed an exclusion, holding that a usage-based royalty base had a sufficient causal connection to the accused functionality. The lesson is about the quality of the record, not about which side benefits.
They are two halves of one problem and it is worth knowing which you have. This Institute covers whether the evidence supports a damages theory and whether the opinion will be admitted — the foundation. Our Economic Damages Institute covers the measures themselves and how a loss is computed once the facts are established. A matter needing both is usually two engagements and sometimes two experts, and finding that out at expert disclosure is considerably more expensive than finding it out at the pleading stage.
Describe the asserted right and the licensing history. The Institute will help you see where the record is thin.